Navigating the post PPL No. P15-IV-01 workplace examination

In Section 2 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), Congress declared that mine operators, with the assistance of the miners, have the primary responsibility to prevent the existence of unsafe and unhealthful conditions in the nation’s mines. In furtherance of this Congressional mandate, the Mine Safety and Health Administration (“MSHA”) promulgated work place examination regulations in both the coal and metal/non-metal sections of the mining industry designed to detect and correct such conditions. In metal/non-metal, the work place examination regulations are set forth in 30 CFR Sections 56/57.18002 (“Sections 56/57.18002”), and state as follows:

(a) A competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health. The operator shall promptly initiate appropriate action to correct such conditions.

(b) A record that such examinations were conducted shall be kept by the operator for a period of one year, and shall be made available for review by the Secretary or his authorized representative.

(c) In addition, conditions that may present an imminent danger which are noted by the person conducting the examination shall be brought to the immediate attention of the operator who shall withdraw all persons from the area affected (except persons referred to in section 104(c) of the Federal Mine Safety and Health Act of 1977) until the danger is abated.

Recently, in response to a rise in metal/non-metal fatal accidents, the Assistant Secretary of Labor for Mine Safety and Health observed that “recent fatalities and other accidents [in metal/ non-metal] suggest miners would benefit from rigorous work place examinations conducted by experienced and trained examiners.” It is certainly the case that thorough work place examinations conducted by competent examiners are vital to work place safety. However, miners would also benefit if work place examiners were operating under a comprehensive regulation that provides clarity in terms of its requirements. The current metal/non-metal examination regulation falls far short of this important benchmark.

Unlike MSHA’s regulations governing examinations in underground and surface coal operations, the metal/non-metal workplace examination regulation is limited in scope, fails to define key terminology, and generally lacks the specificity needed to guide work place examiners. It is worth noting that when MSHA faced a similar issue on the coal side of enforcement, the agency properly addressed the issue by engaging the regulated community in a revision of the Part 75 and 77 examination standards through the notice and comment rulemaking standards set forth in Title 1, Section 101 of the Mine Act.

Far too often, however, poorly drafted regulations become prime targets for MSHA to utilize administrative gap fillers to try and address the problem. The instant case is no exception. Recognizing the lack of specificity in the current metal/non-metal work place examination regulation, MSHA unilaterally chose to invoke an administrative fix to this important issue by announcing Program Policy Letter (“PPL”) No. P15-IV-01 to the regulated community on July 22, 2015.

During a stakeholder’s meeting with concerned operators MSHA officials assured industry attendees the PPL would not create a change in the workplace examination regulation. MSHA’s officials were true to their word – the written language of the work place examination regulation has not changed. What MSHA officials did not discuss during the meeting was the profound impact the PPL will have on the way MSHA inspectors interpret the current work place examination regulation through the lens of new PPL.

In spite of MSHA’s best effort to put a positive spin on the future impact of the PPL, a close reading of the document brings to mind the age old idiom that “to be forewarned is to be forearmed.” MSHA’s decision to avoid notice and comment rule making, thereby keeping the regulated community out of the equation, is sure to create confusion in the months ahead as MSHA inspectors travel the country to explain their versions of the PPL’s mandate. A comprehensive analysis of the PPLs impact cannot be accomplished in this article. However, a short discussion of key points in the PPL, listed below, will hopefully assist metal/non-metal operators in navigating the rough waters ahead.

The examiner should be able to recognize “hazards” … that are known by the operator to be present in the work area; or predictable to someone familiar with the mining industry.

The current language in the work place examination regulation requires examiners to identify conditions which may adversely affect safety or health, a phrase which is not defined in the Mine Act or the regulations. MSHA’s new PPL adds to the examiner’s responsibility by requiring identification of hazards in the work place. And, you guessed it – the term hazard is likewise not defined in MSHA regulations or the Mine Act. One thing is certain – the terms are extremely subjective and open to multiple interpretations by MSHA inspectors. The additional responsibility of examiners to identify yet another “undefined” term will vastly expand MSHA’s current practice of citing operators for alleged inadequate work place examinations based on the inspector’s subjective determination of a hazard or something which may adversely affect safety or health.

In light of MSHA’s new PPL, operators would be wise to conduct additional training for work place examiners. In this vein, it is crucial that an emphasis be placed on reviewing and understanding the operation’s MSHA compliance history, MSHA’s top 20 list of enforcement actions issued, and MSHA’s Rules to Live By. These categories often provide a road map for what the MSHA inspector considers a hazard or a condition which may adversely affect safety or health at your operation.

Finally, all work place examiners should be trained and become familiar with the importance of the “reasonably prudent person test” as it relates to conducting work place examinations. Properly documenting the examiner’s subjective opinion relating to a particular condition could be the difference between success and failure in challenging an inadequate work place examination enforcement action or a proposed civil penalty against the agent of the operator under Section 110 of the Mine Act.

A best practice is for a foreman or other supervisor to conduct the examination; an experienced non supervisory miner may also be competent.

MSHA’s best practice language in the PPL is contrary to their Program Policy Manual and does not legally require operators to use a foreman or supervisor to conduct work place examinations. As stated above, Sections 56/57.18002(a) requires a competent person designated by the operator to conduct work place examinations. Sections 56/57.2 defines the competent person as a person having abilities and experience that fully qualify him to perform the duty to which he is assigned. MSHA suggests as much in the language of the new PPL.

This begs a simple question: Why is MSHA encouraging operators to use foreman and supervisors to conduct work place examinations? The answer can be found in the definition of the term agent in Section 3(a) of the Mine Act[1] and MSHA’s authority to initiate civil and criminal sanctions against agents pursuant to Section 110 of the Mine Act. MSHA understands that foreman and supervisors are agents of the operator and therefore vulnerable to threat of personal responsibility under Section 110 of the Mine Act. Accordingly, it is imperative they have the experience and the ability to conduct the work place examination and to properly evaluate the experience and ability of those they assign the task of conducting work place examinations. It is a safe bet that MSHA will be closely scrutinizing all work place examiners in the months ahead. If you are unsure of your experience or your ability to conduct a particular work place examination, it is best to find someone else for the assignment.

Lastly, it is quite common for MSHA to issue elevated enforcement actions for inadequate work place examinations. Those same elevated enforcement actions often spin off special investigations under Section 110 of the Mine Act. Going forward, it is critical that supervisors and foreman conducting, or assigning, work place examinations fully understand MSHA’s authority and limitations under Section 110, as well as the supervisor and foreman’s rights during a Section 110 investigation.

If a trained competent person fails to identify multiple hazards or if multiple trained competent persons fail to identify similar safety hazards, this may indicate that task training as required under parts 46 and 48 was inadequate or did not occur. Evidence of inadequate training may be a basis on which MSHA may require training plan revisions under Part 46 (30 C.F.R. Sections 46.3(a) and (b)(3) or Part 48 30 C.F.R. Sections 48.3(c)(8) and 48.23(c)(8)).

Prior to MSHA’s July 22, 2015, introduction of the current PPL, the agency canceled an earlier version of the document on July 9, 2015. It appears some in the regulated community thought the language relating to task training and training plan revisions was removed by MSHA. As stated above, the task training and training plan revision language remains part of the new PPL.

The difference in the earlier version of the PPL involved MSHA’s decision to remove the mandatory language in the earlier version and replace it with discretionary language. For example, the earlier version of the PPL stated “conducting a work place examination is a new task for which the competent person must be trained.” The revised language reads “if a trained competent person fails to identify multiple hazards … this may indicate that task training … did not occur. Evidence of inadequate training may be a basis on which MSHA may require training revisions….”

MSHA’s attempt to soften the PPL’s language should not be construed as punting on the task training and plan revision requirements. To the contrary, it appears MSHA was simply trying to shore up its position in any future legal argument that the PPL is a legislative rule versus a general statement of agency policy. The former, of course, would have required the PPL to pass through notice and comment rulemaking under Title 1, Section 101 of the Mine Act thereby allowing comment by the regulated community.

During the run up to MSHA’s enforcement of the PPL, operators would be wise to assure hourly and supervisory work place examiners are properly task trained on the work place examination requirements irrespective of whether the regulation requires task training. You can bet MSHA inspectors, using the new language in the PPL, will be issuing inadequate work place examination enforcement actions by comparing their inspection findings with the findings in the work place examination record. If they do not match, the MSHA inspector will argue the examiner was not properly trained to identify the hazards he discovered during his inspection and therefore not competent. Likewise, given the new language in the PPL on task training, it is very likely operators will begin to see MSHA issuing enforcement actions for inadequate task training based on the results of the MSHA inspection.

Finally, pre-enforcement awareness training can be a valuable tool in leveling the playing field with MSHA. Educating work place examiners, supervisors, and company escorts on MSHA’s authority, and limitations, is imperative in today’s regulatory climate. It is also a great opportunity to train management personnel on the importance of effective documentation during work place examinations and MSHA inspections. Knowledge is power. A little education and proper documentation of the facts during an inspection can be the difference between success and failure in a challenge to MSHA enforcement actions.

It is a best practice also to include a description of such conditions in the examination record to facilitate correction and to alert others at the mine of conditions that may recur or in other ways affect them.

Subpart (b) of Sections 56/57.18002(b) states “a record that such examinations were conducted shall be kept by the operator for a period of one year, and shall be made available for review by the Secretary or his authorized representative.” The regulation’s language is silent on what the record must include. MSHA ‘s Program Policy Manual (Volume IV- Metal and NonMetal Mines, Subpart Q, Safety Programs) attempts to fill in the gaps stating the record must include (1) the date the examination was made; (2) the examiner’s name; and (3) the working place examined.

A truncated version of the new PPL’s language requiring a description of conditions in the examination record was present in predecessor PPL No. P14-IV-01. The new PPL expands the language in PPL No. P14-IV-01 suggesting a description of the conditions will facilitate correction and alert others at the mine of conditions that may recur or in other ways affect them. Oddly enough, subpart (a) of Sections 56/57.18002 contains language directing exactly what the operator’s responsibility is when conditions are discovered during a work place examination – the operator must promptly initiate appropriate action to correct such conditions. Certainly nothing in Sections 56/57.18002(b) suggest that MSHA, when drafting the work place examination regulation, expected the recording requirements to facilitate correction or alarm others of the conditions.

For those familiar with MSHA’s lengthy track record of issuing inadequate examination enforcement actions in underground coal, it is tempting to question MSHA’s intentions in expanding the PPL’s language in this area. What we know for sure is that MSHA inspectors routinely seek copies of work place examination records prior to inspections and often use the findings in the record to judge the competency of the examiner.

Just to be clear, I am not suggesting examiners omit the recording of the conditions they find during work place examinations. Obviously, conditions must be recorded to facilitate correction. However, experience teaches us that rambling descriptions and personal opinions about the conditions, particularly by supervisors and foremen, are often characterized by MSHA as supporting the inspector’s gravity, negligence, or unwarrantable failure findings in an enforcement action. Supervisors and foremen who routinely perform work place examinations must take this obligation seriously and understand that the primary goal of the work place examination is to find conditions that may adversely affect safety or health and promptly initiate corrective action. An examiner’s over editorializing of the conditions found during work place examinations will likely have little impact on improving health and safety.

During the July 22, 2015, stakeholders meeting, MSHA officials announced the new PPL would not be enforced until the agency conducts a nationwide explanation of its content. This time frame will hopefully provide an opportunity for metal/non-metal operators to understand the mandates in the PPL and how they will impact future work place examinations. My suspicion is there will be many more questions asked than answered by MSHA during their cross country explanation tour.

Bob Beatty is a Partner in the law firm of Dinsmore & Shohl LLP where his practice focuses exclusively on representing mine operators in the coal and metal/non-metal sectors of the mining industry. During his tenure with Dinsmore, Bob has been responsible for overseeing litigation in over 1400 cases before the Federal Mine Safety and Health Review Commission and state regulatory enforcement agencies. Prior to joining Dinsmore, Bob worked for nearly a decade as an underground coal miner. Between 1997 and 2004, Bob served as a Presidential appointee, twice confirmed by the United States Senate, as a member of the Federal Mine Safety and Health Review Commission. He has also served as the Administrator of Legal Services for the West Virginia Office of Miners’ Health, Safety and Training. In addition to litigation, Bob provides comprehensive pre-enforcement awareness training for mine operators covering the Mine Act, MSHA regulations, and other MSHA related matters. He is also a frequent speaker nationally on MSHA related topics.

By: Robert Huston Beatty, Jr.

For more information, contact the author by electronic mail at [email protected] or 304.225.1412 or www.dinsmore.com

[1] Section 3(a) of the Mine Act defines the term “agent” as “…any person charged with the responsibility for the operation of all or part of a coal or other mine or the supervision of the miners in a coal or other mine.”